Does Australia need a Bill of Rights? 18th July 2008
November 4, 2008

The Bill of Rights debate is on again. At the Prime Minister’s “Australia 2020 Summit” at Parliament House in April 2008, the Australian Governance group’s report “…expressed strong support for a statutory Bill or Charter of Rights, with minority support for a parliamentary Charter”.

Australia is the last remaining Common Law country without such a bill.

The standard example of such a bill comes from the United States. The current US Constitution of 1789 (the second attempt at writing one and still in force – a magnificent document) has a list of the first 10 amendments to the Constitution from 1791. These are the original Bill of Rights.

The rights listed are principally to protect the average American against his/ her government – rather than oblige the government to assist the individual (for example the document guarantees a person’s opinion but not their capacity to be able to eat or read). The protected rights are therefore mainly individual civil and political rights (which were the focus of attention in the 18th century) for example freedom of opinion, freedom of religion, prevention of cruel or unusual punishment – rather than the more contemporary economic and social rights or the “third generation rights” for example a right to healthy environment.

The rights are constitutionally entrenched and so difficult to alter. The US Congress cannot adopt legislation to override the rights.

There has been a gradual movement in other Common Law countries in favour of such bills, for example, the Canadian Charter of Rights and Freedoms incorporated into the Constitution Act in 1982 and the New Zealand Bill of Rights Act 1990. No major country, having adopted such a bill, has later deleted it, and in all cases the bills of rights have broadly been accepted by the majority of citizens.

The UK has the Human Rights Act 1998. The UK had the pioneering Bill of Rights back in 1689 (to delineate the roles of sovereign and parliament). It has been subject in recent decades to the European Convention on Human Rights and Fundamental Freedoms. It now has its own Bill of Rights as part of its national legislation but not entrenched in a constitution.

A very good and balanced review of the UK situation has just been published by Justice, the independent British law reform and human rights organization, which is the British section of the Geneva-based International Commission of Jurists. The report is called “A British Bill of Rights: Informing the Debate”. It will also help the Australian debate.

The Justice report is designed to help people think through the issues rather than advocate a particular point of view. It covers the content of a bill of rights, how it could be amended, the role of adjudication and enforcement, and the process by which it should progress.

The report is a good introduction to the entire Bill of Rights debate, with historical information and a survey of experiences in other countries. On Australia it notes that “Australia is the only democratic nation which does not have a national bill of rights, even though it has had a written constitution since 1901”. But it does note that the Australian Capital Territory and Victoria now have their own local versions.

The founders of the 1901 Australian Constitution deliberately avoided the US Bill of Rights model: first, such a bill could have been used to challenge the prevailing White Australia Policy excluding the Chinese and others and, second, it could also have caused problems in the context of the poor treatment of Australia’s Indigenous Peoples at State level. Now those conditions have changed and so perhaps it is time to review the bill of rights debate.